BILL ANALYSIS Ó
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|Hearing Date:June 27, 2011 |Bill No:AB |
| |417 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: AB 417Author:B. Berryhill
As Amended:June 20, 2011 Fiscal: No
SUBJECT: Structural pest control.
SUMMARY: Prohibits a city, county, or city and county from
prohibiting a licensee of the Structural Pest Control Board from
engaging in the particular business, occupation, or profession for
which he or she is licensed under the Structural Pest Control law.
Existing law:
1) Prohibits a city or county from prohibiting a person or group of
persons, authorized by one of the agencies in the Department of
Consumer Affairs (DCA) by a license, certificate, or other such
means to engage in a particular business, from engaging in that
business, occupation, or profession or any portion thereof.
(Business and Professions Code (BPC) § 460 (a))
2) Provides for the licensing and regulation of more than 24,000
structural pest control operators, field representatives,
applicators and registered structural pest control companies by the
Structural Pest Control Board (SPCB or Board) within the Department
of Pesticide Regulation (DPR).
3) Provides that the practice of structural pest control includes
engaging in, offering, advertising, soliciting, or the performance
of: identification of infestations or infections; making an
inspection to identify infestations or infections of structures by
pests or organisms; making inspection reports, recommendations,
estimates, and bids; making contracts, or bidding for, or the
performance of any work including, making structural repairs or
replacements , or the use of pesticides, insecticides, rodenticides,
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fumigants, or allied chemicals or substances, or mechanical devices
for the purpose of eliminating, exterminating, controlling or
preventing infestations or infections of pests, or organisms. (BPC
§ 8505)
4) Provides for structural pest control operators, field
representatives, and applicators to be licensed in as many as three
specified areas of pest control: Branch 1 - Fumigation, Branch 2 -
General pest, and Branch 3 - Termite. (BPC § 8560)
5) Specifically provides that the practice of the Branch 3 - Termite
license relates to the control of wood-destroying pests or
organisms by the use of insecticides, or structural repairs and
corrections, excluding fumigation with poisonous or lethal gases.
(BPC § 8560)
6) Licenses and regulates contractors by the Contractors State License
Board within the Department of Consumer Affairs (DCA) and exempts
from the licensing requirement, a licensed structural pest control
operator acting within the scope of his or her license. (BPC §
7051)
This bill:
1) Prohibits a city, county, or city and county from prohibiting a
licensee of the SPCB from engaging in the particular business,
occupation, or profession for which he or she is licensed under the
Structural Pest Control law.
FISCAL EFFECT: None. This bill has not been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1. Purpose. This bill is sponsored by the Pest Control Operators of
California (Sponsor). According to the Author, "AB 417 simply
clarifies to local building inspectors in statute the ability to
make repairs which were lost when the Structural Pest Control Board
was removed from the jurisdiction of the Department of Consumer
Affairs and placed under the authority of the Department of
Pesticide Regulation."
The Author notes that when the SPCB was moved from under DCA, the
ability for a licensed pest control operator to secure a building
permit was impacted. SPCB licensees need these permits to make
repairs caused by pest damage.
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2. Background. General provisions of the Business and Professions
Code prohibits a city or county from prohibiting a person licensed
by a board or bureau under DCA to engage in that licensed business,
occupation, or profession or any portion thereof (BPC § 460 (a)).
In 2009, ABX4 20 (Strickland, Chapter 18, Statutes of 2009) made a
number of changes to several regulatory agencies, including, moving
the SPCB from the DCA into the DPR. In transferring the Board
outside of DCA it has been argued that the licensed pest control
operators no longer meet the criteria of Section 460 (a), since the
SPCB is no longer under DCA. This has direct impact on the ability
of pest control operators, operating under their licenses, to
obtain building permits and have their modifications and repairs
signed off on by local building inspectors.
This bill would address this issue by mirroring the provisions of BPC
§ 460 (a) in the Structural Pest Control Act.
3. Repairs by Pest Control Licensees. The Structural Pest Control Act
provides for the licensing and regulation of structural pest
control operators, field representatives, and applicators and the
registration of structural pest control companies by the SPCB. The
SPCB was created by the California Legislature in 1935. Prior to
that time structural pest control was regulated by the Contractors
State License Board. By application and examination, the SPCB
issues licenses in three specified areas of pest control. All
companies and their branch offices must be registered by the SPCB.
Branch 1 - Fumigation. The control of household and wood
destroying pests or organisms by fumigation with poisonous or
lethal gases.
Branch 2 - General pest. The control of household pests, but
excludes fumigation.
Branch 3 - Termite. The control of wood destroying pests or
organisms by use of insecticides, or structural repairs and
corrections, excluding fumigation.
When an inspection finds wood destroying pests in a structure, the
report must include recommendations for corrective measures.
Corrective measures may include the repair or replacement of
structural elements which have been damaged by pests or organisims.
At the consumers choice, the consumer may make the necessary
corrective repairs in any of several ways, including: using the
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services of a licensed contractor, or contracting with a Branch 3
licensee for those repairs and corrections.
The Contractors State License law exempts pest control operators
acting with the scope of their license from the contractor
licensing requirement (BPC § 7051). The CSLB's Building Official
Information Guide states, "Structural Pest Control Operators are
not required to hold a contractor's license when operating within
the scope of their license. Only a Branch 3 Licensed Structural
Pest Control Operator may contract and pull permits for the repair
or replacement of wood damaged by wood-destroying pests or
organisms."
4. Hearing on Governor's Elimination, Consolidation and Reorganization
Proposals and Consolidation of the Structural Pest Control Board
under the Department of Pesticide Regulation. In the May Revision
of the 2009-2010 State Budget (May Revise), the Administration made
a number of recommendations to eliminate and consolidate a number
of boards and regulatory programs. In the summer of 2009, the
Business, Professions and Economic Development Committee (BP&ED
Committee) convened a hearing on the Governor's Elimination,
Consolidation and Reorganization Proposals made in the May Revise.
The Budget Conference Committee had requested that the Committee
consider a number of the specific elimination, consolidation and
reorganization proposals made by the Governor, as well as other
consolidation proposals identified by the BP&ED Committee. In the
hearing, the BP&ED Committee received testimony from the
Administration, DCA, boards and bureaus that would be affected by
the proposed changes, and also from the Legislative Analyst's
Office (LAO), the Center for Public Interest Law, professional
associations, members of the regulated professions, and members of
the public. The BP&ED Committee made its recommendations in a
Report to the Conference Committee. Those recommendations and the
legislative changes necessary to implement the recommendations were
the bases for ABX4 20.
At that hearing, the BP&ED Committee considered 13 separate
consolidation or elimination proposals, including whether the SPCB
should be consolidated under the DPR. Ultimately the Committee,
approved on an 8-0 vote, a motion to consolidate the Structural
Pest Control Board within the Department of Pesticide Regulation,
keeping the board and its licensing and regulatory functions intact
and maintaining the transparency and public input of the board's
regulatory operations. Those changes were included in ABX4 20.
In placing the SPCB under the oversight of DPR , the BP&ED Committee
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noted that the eradication of pests and application of dangerous
chemicals and pesticides by pest control operators and pest control
companies presents significant environmental and health and safety
issues. Although the regulation of business that inspects
structures for pests and infestations is a significant portion of
the activities of the SPCB, the application of pesticides to
eradicate pests is an underlying risk to consumers and the public.
It is appropriate that efficiencies and the safety of the public
might be better protected by consolidating the functions of the
SPCB within the DPR.
5. Arguments in Support. In sponsoring the bill, the Pest Control
Operators of California state that the bill would simply allow
licensed pest control operators to have the same right to make
structural repairs under the Department of Pesticide Regulation, as
they previously had under the Department of Consumer Affairs."
SUPPORT AND OPPOSITION:
Support: Pest Control Operators of California (Sponsor)
Opposition: None on file as of June 21, 2011
Consultant:G. V. Ayers